This Explanatory Note was written as a reader’s aid to Bill 21 and does not form part of the law. Bill 21 has been enacted as Chapter 6 of the Statutes of Ontario, 2014.

The Bill amends the Employment Standards Act, 2000.

Section 49.3, which creates family caregiver leave, is added to the Act. Under section 49.3, an employee is entitled to a leave of absence without pay to provide care or support to a family member who has a serious medical condition. An employee may take up to eight weeks per calendar year with respect to each family member described in the section or prescribed by regulation. Entitlement to family caregiver leave is in addition to any entitlement to family medical leave under section 49.1, critically ill child care leave under section 49.4, crime-related child death or disappearance leave under section 49.5 and personal emergency leave under section 50.

Section 49.4, which creates critically ill child care leave, is added to the Act. Under section 49.4, an employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay of up to 37 weeks to provide care or support to a critically ill child. Entitlement to critically ill child care leave is in addition to any entitlement to family medical leave under section 49.1, family caregiver leave under section 49.3, crime-related child death or disappearance leave under section 49.5 and personal emergency leave under section 50.

Section 49.5, which creates crime-related child death or disappearance leave, is added to the Act. Under section 49.5, an employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay if a child of the employee dies or disappears and it is probable, considering the circumstances, that the child died or disappeared as a result of a crime. An employee is not entitled to a leave of absence under section 49.5 if the employee is charged with the crime or if it is probable, considering the circumstances, that the child was a party to the crime. An employee may take a leave of up to 104 weeks with respect to the death of a child and up to 52 weeks with respect to the disappearance of a child. Entitlement to crime-related child death or disappearance leave is in addition to any entitlement to family medical leave under section 49.1, family caregiver leave under section 49.3, critically ill child care leave under section 49.4 and personal emergency leave under section 50.

Section 52.1, which sets out rules relating to leaves required to be taken in periods of entire weeks, is added to the Act.

The Lieutenant Governor in Council has authority to make regulations dealing with transitional matters. In the event of a conflict between section 49.3, 49.4 or 49.5 and a transitional regulation, the regulation prevails.

The Bill comes into force six months after the day it receives Royal Assent.

2. (1) The French version of subsection 49.1 (7) of the Act is amended by striking out “périodes d’une semaine complète” and substituting “périodes de semaines complètes”.

(2) Subsection 49.1 (12) of the Act is repealed and the following substituted:

Leave under ss. 49.3, 49.4, 49.5 and 50

(12) An employee’s entitlement to leave under this section is in addition to any entitlement to leave under sections 49.3, 49.4, 49.5 and 50.

3. The Act is amended by adding the following sections:

Family Caregiver Leave

Family caregiver leave

Definitions

49.3 (1) In this section,

“qualified health practitioner” means,

(a) a
person who is qualified to practise as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual described in subsection (5), or

(b) in the prescribed circumstances, a member of a prescribed class of health practitioners; (“praticien de la santé qualifié”)

“week” means a period of seven consecutive days beginning on Sunday and ending on Saturday. (“semaine”)

Entitlement to leave

(2) An employee is entitled to a leave of absence without pay to provide care or support to an individual described in subsection (5) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition.

Serious medical condition

(3) For greater certainty, a serious medical condition referred to in subsection (2) may include a condition that is chronic or episodic.

Same

(4) An employee is entitled to take up to eight weeks leave under this section for each individual described in subsection (5) in each calendar year.

Application of subs. (2)

(5) Subsection (2) applies in respect of the following individuals:

1. The employee’s spouse.

2. A
parent, step-parent or foster parent of the employee or the employee’s spouse.

3. A child, step-child or foster child of the employee or the employee’s spouse.

4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.

5. The spouse of a child of the employee.

6. The employee’s brother or sister.

7. A relative of the employee who is dependent on the employee for care or assistance.

8. Any individual prescribed as a family member for the purpose of this section.

Advising employer

(6) An employee who wishes to take a leave under this section shall advise his or her employer in writingthat he or she will be doing so.

Same

(7) If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it.

Copy of certificate

(8) If requested by the employer, the employee shall provide the employer with a copy of the certificate referred to in subsection (2) as soon as possible.

Leave under ss. 49.1, 49.4, 49.5 and 50

(9) An employee’s entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.4, 49.5 and 50.

Critically Ill Child Care Leave

Critically ill child care leave

Definitions

49.4 (1) In this section,

“child” means a child, step-child, foster child or child who is under legal guardianship, and who is under 18 years of age; (“enfant”)

“critically ill child” means a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury; (“enfant gravement malade”)

“qualified health practitioner” means,

(a) a person who is qualified to practise as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual described in subsection (2), or

(b) in the prescribed circumstances, a member of a prescribed class of health practitioners; (“praticien de la santé qualifié”)

“week” means a period of seven consecutive days beginning on Sunday and ending on Saturday. (“semaine”)

Entitlement to leave

(2) An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay to provide care or support to a critically ill child of the employee if a qualified health practitioner issues a certificate that,

(a) states that the child is a critically ill child who requires the care or support of one or more parents; and

(b) sets out the period during which the child requires the care or support.

Same

(3) Subject to subsections (4) and (5), an employee is entitled to take up to 37 weeks leave under this section to provide care or support to a critically ill child of the employee.

Same — period less than 37 weeks

(4) If the certificate described in subsection (2) sets out a period of less than 37 weeks, the employee is entitled to take a leave only for the number of weeks in the period specified in the certificate.

Same — more than one child critically ill

(5) If more than one child of the employee is critically ill as the result of the same event, the employee is not entitled to take a leave for a longer period than the period that would otherwise apply under subsection (3) or (4).

When leave must end

(6) Subject to subsections (7) and (8), a leave under this section ends no later than the last day of the period specified in the certificate described in subsection (2).

Limitation period

(7) If the period specified in the certificate described in subsection (2) is 52 weeks or longer, the leave ends no later than the last day of the 52-week period that begins on the earlier of,

(a) the first day of the week in which the certificate is issued; and

(b) the first day of the week in which the child in respect of whom the certificate was issued became critically ill.

Same — more than one child critically ill

(8) If more than one child of the employee is critically ill as the result of the same event and the period specified in any certificate described in subsection (2) that was issued in respect of any of the children is 52 weeks or longer, the leave ends no later than the last day of the 52-week period that begins on the earlier of,

(a) the first day of the week in which the first certificate is issued in respect of any of the children; and

(b) the first day of the week in which the first of the children in respect of whom a certificate was issued became critically ill.

Death of child

(9) Subject to subsection (10), if a critically ill child dies while an employee is on a leave under this section, the employee’s entitlement to be on leave ends at the end of the week in which the child dies.

Same — more than one child critically ill

(10) Subsection (9) does not apply if more than one child of the employee is critically ill as the result of the same event, unless all of the children die while the employee is on leave, in which case the employee’s entitlement to be on leave ends at the end of the week in which the last child dies.

Total amount of leave

(11) The total amount of leave that may be taken by one or more employees under this section in respect of the same child, or children who are critically ill as the result of the same event, is 37 weeks.

Further leave

(12) If one or more children in respect of whom an employee has taken a leave under this section remain critically ill while the employee is on leave or after the employee returns to work, but before the 52-week period described in subsection (7) or (8) expires, the employee is entitled to take an extension of the leave or a new leave if,

(a) a
qualified health practitioner issues an additional certificate described in subsection (2) for the child or children that sets out a different period during which the child or children require care or support;

(b) the total amount of leave taken in the leave or combined leaves, as the case may be, does not exceed 37 weeks; and

(c) the leave ends no later than the last day of the period described in subsection (7) or (8).

Additional leaves

(13) If one or more children in respect of whom an employee has taken a leave under this section remain critically ill after the 52-week period described in subsection (7) or (8) expires, the employee is entitled to take another leave and the requirements of this section apply to the new leave.

Advising employer

(14) An employee who wishes to take a leave under this section shall advise his or her employer in writingthat he or she will be doing so and shall provide the employer with a written plan that indicates the weeks in which he or she will take the leave.

Same

(15) If an employee must begin a leave under this section before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it and shall provide the employer with a written plan that indicates the weeks in which he or she will take the leave.

Same — change in employees plan

(16) An employee may take a leave at a time other than that indicated in the plan provided under subsection (14) or (15) if the change to the time of the leave meets the requirements of this section and,

(a) the employee requests permission from the employer to do so in writing and the employer grants permission in writing; or

(b) the employee provides the employer with such written notice of the change as is reasonable in the circumstances.

Copy of certificate

(17) If requested by the employer, the employee shall provide the employer with a copy of the certificate referred to in subsection (2) as soon as possible.

Leave under ss. 49.1, 49.3, 49.5 and 50

(18) An employee’s entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.3, 49.5 and 50.

Crime-Related Child Death or Disappearance Leave

Crime-related child death or disappearance leave

Definitions

49.5 (1) In this section,

“child” means a child, step-child or foster child who is under 18 years of age; (“enfant”)

“crime” means an offence under the Criminal Code(Canada), other than an offence prescribed by the regulations made under paragraph 209.4 (f) of the Canada Labour Code (Canada); (“crime”)

“week” means a period of seven consecutive days beginning on Sunday and ending on Saturday. (“semaine”)

Entitlement to leave — death of child

(2) An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay of up to 104 weeks if a child of the employee dies and it is probable, considering the circumstances, that the child died as a result of a crime.

Entitlement to leave — disappearance of child

(3) An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay of up to 52 weeks if a child of the employee disappears and it is probable, considering the circumstances, that the child disappeared as a result of a crime.

Exception

(4) An employee is not entitled to a leave of absence under this section if the employee is charged with the crime or if it is probable, considering the circumstances, that the child was a party to the crime.

Same — change in circumstance

(5) If an employee takes a leave of absence under this section and the circumstances that made it probable that the child of the employee died or disappeared as a result of a crime change and it no longer seems probable that the child died or disappeared as a result of a crime, the employee’s entitlement to leave ends on the day on which it no longer seems probable.

Same — child found

(6) Subject to subsection (7), if an employee takes a leave of absence under subsection (3) and the child is found within the 52-week period that begins in the week the child disappears, the employee is entitled to,

(a) remain on leave for 14 days after the day the child is found, if the child is found alive; or

(b) take 104 weeks of leave from the day the child disappeared, if the child is found dead, whether or not the employee is still on leave when the child is found.

Same — exception

(7) If the child is found dead more than 52 weeks after the week in which the child disappeared, the employee is entitled to take a leave under subsection (2) of up to 104 weeks.

Single period

(8) An employee may take a leave under this section only in a single period.

Same

(9) Despite subsection (8), an employee may take a leave under this section in two or more periods if clause (6) (b) applies.

Limitation period — death of child

(10) An employee may take a leave under subsection (2) only during the 105-week period that begins in the week the child dies.

Limitation period — disappearance of child

(11) Except as otherwise provided for in subsection (6), an employee may take a leave under subsection (3) only during the 53-week period that begins in the week the child disappears.

Total amount of leave — death of child

(12) The total amount of leave that may be taken by one or more employees under subsection (2) in respect of a death, or deaths that are the result of the same event, is 104 weeks.

Total amount of leave — disappearance of child

(13) The total amount of leave that may be taken by one or more employees under subsection (3) in respect of a disappearance, or disappearances that are the result of the same event, is 52 weeks.

Advising employer

(14) An employee who wishes to take a leave under this section shall advise his or her employer in writingthat he or she will be doing so and shall provide the employer with a written plan that indicates the weeks in which he or she will take the leave.

Same

(15) If an employee must begin a leave under this section before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it and shall provide the employer with a written plan that indicates the weeks in which he or she will take the leave.

Same — change in employees plan

(16) An employee may take a leave at a time other than that indicated in the plan provided under subsection (14) or (15) if the change to the time of the leave meets the requirements of this section and,

(a) the employee requests permission from the employer to do so in writing and the employer grants permission in writing; or

(b) the employee provides the employer with four weeks written notice before the change is to take place.

Evidence

(17) An employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave.

Leave under ss. 49.1, 49.3, 49.4 and 50

(18) An employee’s entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.3, 49.4 and 50.

4. The Act is amended by adding the following section:

Leave taken in entire weeks

52.1 (1) If a provision in this Part requires that an employee who takes a leave to provide care or support to a person take the leave in periods of entire weeks and, during a week of leave, an employee ceases to provide care or support,

(a) the employee’s entitlement to leave continues until the end of the week; and

(b) the employee may return to work during the week only if the employer agrees, whether in writing or not.

Same

(2) If an employee returns to work under clause (1) (b), the week counts as an entire week for the purposes of any provision in this Part that limits the employee’s entitlement to leave to a certain number of weeks.

5. Section 141 of the Act is amended by adding the following subsections:

Transitional regulations re certain leaves

(2.0.3) The Lieutenant Governor in Council may make regulations providing for any transitional matter that the Lieutenant Governor in Council considers necessary or advisable in connection with the implementation of section 49.3, 49.4 or 49.5.

Conflict with transitional regulations

(2.0.4) In the event of a conflict between section 49.3, 49.4 or 49.5 and a regulation made under subsection (2.0.3), the regulation prevails.

Commencement

6. This Act comes into force on the day that is six months after the day it receives Royal Assent.

Short title

7. The short title of this Act is the Employment Standards Amendment Act (Leaves to Help Families), 2014.